Office of the Attorney General of Texas

Re: Status of county road and bridge employees if a county returns to
the ex officio road commissioner system pursuant to subchapter A, chapter
252, Transportation Code (ID# 39079)

Dear Mr. Davidson:

You ask whether, in the event that Panola County ceases to operate its
road and bridge department as a County Road Department of the sort authorized
by subchapter D, chapter 252 of the Transportation Code, and instead operates
under the ex officio road commissioner system authorized by subchapter
A, chapter 252, the employees of the road and bridge department "become
unemployed" when the ex officio system begins in operation. With the
arguable exception of the county road engineer, about whom you do not appear
to be asking, no employee would necessarily be discharged in the event
of a change in the road administration system. However, we note that nothing
in chapter 252 appears to treat such employees as other than at-will, and
that commissioners have under sections 252.006(c) and 252.006(d) the power
to hire and fire any employee "in the commissioner's precinct."
Accordingly, no employee has a legally enforceable expectation of continued
employment.

Subchapter D, under which Panola County now operates its road administration
system, provides for a county road department the policy-making body of
which is the commissioners court, the chief executive officer of which
is the county road engineer, and which is staffed by administrative personnel
and road employees. Transp. Code § 252.302. The county road engineer
holds office for an indefinite term and may be removed by a majority vote
of the commissioners court, such removal to be effective on the thirtieth
day after he has had written notice of the court's intent. He may request
and receive a public hearing on the removal. Id. § 252.307.
The engineer, subject to the court's approval, has the power to hire and
fire the department's personnel, and to authorize administrative personnel
to hire and fire subordinates. Id. § 252.309.

The subchapter A system, to which it is proposed that Panola County
convert its road administration system, is otherwise known as the "precinct"
or "ex officio road commissioner" system. Under the ex officio
road commissioner system, each member of the commissioners court is responsible
for the road system in his or her precinct, including vehicles, tools,
and machinery. Id. § 252.006(a). The commissioner directs the
laying out of new roads, the construction or changing of roads, and the
building of bridges. Id. § 252.006(b). He or she has the power
to hire and fire

employees in his or her precinct who are paid from the county road and
bridge fund. Id. §§ 252.006(c), .006(d).

As is clear from the above description, one principal difference between
the two administrative systems is that the duties of the road engineer
in a subchapter D system are essentially those of the ex officio commissioners
in a subchapter A system. Accordingly, it would appear that, upon the conversion
of a road administration system from a subchapter D to a subchapter A system,
the position of road engineer would be abolished by operation of law. However,
since your question appears to concern the ordinary employees of the road
department, we do not decide this question.

As to the ordinary employees, we find nothing in the statute which would
require their dismissal if the road administration system changes. We note,
however, that under section 252.006(d), an ex officio road commissioner
has the right to discharge any such employee in his or her precinct who
is paid from the road and bridge fund. We are unaware of any contractual
basis on which any such employee may claim tenure of office. Moreover,
it would appear that Panola County has too small a population to be eligible
to create a county civil service system under chapter 158 of the Local
Government Code.<1>

In Texas, absent contractual or civil service protection, a public employee
may be terminated at will. SeeLetter Opinion
No. 96-139 (1996). Accordingly, an ex officio road commissioner under
a subchapter A system may dismiss an employee in his precinct for any reason
or no reason, so long as he does not do so for an unconstitutional reason.<2>
Such employees, therefore, have no legally enforceable expectations of
continued employment.

S U M M A R Y

Should a county with a population of less than 200,000 decide to change
its road administration system from the county road department system described
in subchapter D, chapter 252, Transportation Code to the ex officio road
commissioner system of subchapter A, chapter 252, the road department employees
have no legally enforceable expectation of continued employment.

Yours very truly,

James E. Tourtelott
Assistant Attorney General
Opinion Committee

Footnotes

<1> An eligible county is defined as one "with
a population of 200,000 or more." Local Gov't Code § 158.002.
According to the 1996-97 Texas Almanac, the population of Panola County
is 22,653.(Back to opinion)

<2> We caution, however, that such a commissioner
would be well advised to apprise himself of the limitations on patronage
hiring and discharge which have been articulated by the United States Supreme
Court and the Court of Appeals for the Fifth Circuit. SeeLetter
Opinion No. 96-139 (1996).(Back to opinion)